Criminal procedural law issues in the practice of the Prosecutor's Office attached to the Târgu Mureş Court of Appeal and the prosecutor’s offices under its jurisdiction, in the year of 2019
Abstract
1. The affirmation of the victim, included in the declaration given during the criminal prosecution, by which he or she requests that the perpetrator be held criminally liable, may be qualified as a prior complaint. However, it is necessary for the declaration to be given within the time limit provided by law for filing the prior complaint and to express clearly the will of the victim to request the perpetrator to be held criminally liable.
2. It is not possible, regarding the same offense, by the same ordinance, to order both the cessation according to art. 16 para. 1 let. c Crim. Proc. Code and the renunciation of the criminal prosecution in rem. However, it is possible that, regarding the same offense, in a first file, by a first ordinance, to order the cessation according to art. 16 para. 1 let. c Crim. Proc. Code, and, based on new factual elements, in a second file, by a second ordinance, to order the renunciation of the criminal prosecution in rem.
3. If the active subject of the offense is known, the renunciation of the criminal prosecution shall be ordered only after the continuation of the criminal prosecution is ordered, at least.
4. Lex lata, the reason why a new renunciation of the criminal prosecution cannot be ordered, when the request to confirm a previous renunciation of the criminal prosecution has been rejected, is a legislative one. The law itself prohibits a new renunciation of the criminal prosecution, if the request to confirm a previous renunciation of the criminal prosecution has been rejected.
Lex Ferenda:
a) if the arguments underlying the rejection of the request to confirm the previous renunciation of the criminal prosecution are procedural, a new renunciation of the criminal prosecution, respecting the procedural requirements, can be ordered;
b) if the arguments underlying the rejection of the request to confirm the previous renunciation to the criminal prosecution are substantial and:
- the factual situation taken into consideration in rejecting the request to confirm the previous renunciation of the criminal prosecution change, and from its content arguments are drawn to support a new renunciation to the criminal prosecution, it can be ordered;
- the factual situation taken into consideration in rejecting the request to confirm the previous renunciation to the criminal prosecution does not change or, although it changes, form its content arguments are not drawn to support a new renunciation of the criminal prosecution, it cannot be ordered.
5. The preliminary chamber judge has the obligation, ex officio, to verify the lawfulness and the soundness of the preventive arrest and to decide on its maintenance, replacement, revocation or termination. The verification of the lawfulness and the soundness of the preventive arrest in the preliminary chamber can be preceded by a request, for example, to maintain the measure, made by the prosecutor who carried out or supervised the criminal prosecution (in writing, by the indictment act) or by the hearing prosecutor (orally or in writing, in the preliminary chamber). However, the obligation of the preliminary chamber judge to verify the lawfulness and soundness of the preventive arrest does not depend on such a request.
